Ansari Safeer Ahmed Musheer A. & Ors. vs The Union Of India & Anr.

(Per Dr Neela Gokhale, J.)

This Writ Petition is filed under Article 226 of the Constitution of India by 38 Petitioners, who claim to have been working as Seasonal Clerks (Petitioner No. 1 to 21), Seasonal Peons (Petitioner Nos. 22 to 26) and Seasonal Sweepers (Petitioner No. 27 to 38) with the Respondents. All the Petitioners seek to quash and set aside the order dated 25th November 2023, passed by Respondent No. 2, terminating the Petitioners' services with effect from the said date.

Respondent No. 1 is the Union of India, through the Secretary, Ministry of Minority Affairs (Haj Division), and Respondent No. 2 is the Haj Committee of India, established under the Haj Committee Act, 2002, through its Chief Executive Officer.

The Petitioners contend that, considering that the work pertaining to making arrangements to assist Indian Pilgrims to perform their Haj Pilgrimage to Saudi Arabia has increased manifold, the requirement of employing additional labor has also increased. The Petitioners claim to have worked in their respective posts as aforesaid as seasonal employees since 2009. The work entails working on computers, passport assistance and other such incidental services.

According to the Petitioners, Respondent No. 2, by its letter dated 25th November 2023, suddenly terminated the Petitioners' services without assigning any reason. The Petitioners believed this was a technical break, as usual, and that they would be re-engaged in due course. However, even after three months, their services were not resumed. Aggrieved by their termination, the Petitioners have approached this Court for the reliefs prayed for.

Mr Vicky Nagrani, learned Counsel, appeared for the Petitioners and Mr Manish Shukla, learned Counsel, represented the State. No one appeared for the Respondent, the Union of India.

Mr Nagrani submitted that the impugned order is arbitrary and illegal. The Petitioners were not given any opportunity to be heard; thus, there is a violation of the principles of natural justice.

The Petitioners state that, with the increased number of embarkation points, the management of Haj affairs has been diversified and representation from throughout the country has been included in the Haj Committee for making the necessary arrangements and assisting Indian pilgrims to perform the Haj pilgrimage to Saudi Arabia. On this basis, they have pleaded that the Respondents are amenable to the writ jurisdiction of this Court.

It is further the case of the Petitioners that the work pertaining to Haj arrangements has increased to a great extent in the recent past, particularly after Covid-19; that Respondent No. 1 is required to provide various services and facilities to Haj pilgrims and, for that purpose, to employ additional labor; and that the work is of a regular and perennial nature. The duties performed by the staff concerned include handling and processing online and manual submissions of Haj applications, obtaining MOFA, and handling Haj charter operations from various embarkation points. According to the Petitioners, this work requires permanent labour and is continuous and permanent, not seasonal, although they are designated as seasonal employees. They further state that the work they carry out is identical to that performed by permanent employees of the same category, that there is nevertheless a disparity in wages, and that the qualifications required for the posts held by permanent employees are satisfied even by the Petitioners.

Learned counsel for the Respondents submits that the Petitioners were engaged or re-engaged by the Haj Committee of India (HCoI) only as seasonal clerks, peons and sweepers for works of a seasonal nature, required mainly during the Haj period, and not for works of a regular or permanent nature. It is submitted that the terms and conditions of service of HCoI employees are governed by rules notified under Section 44(2)(vi) read with Section 16(5) of the Haj Committee Act, 2002 and Rule 16 of the Haj Committee Rules, 2002, and that regular recruitment is made only as per the Recruitment Rules. The Petitioners’ engagement was not made by following the due procedure prescribed for regular or permanent recruitment, and the Petitioners were clearly informed at the time of engagement that it was purely seasonal and conferred no right to continuance. Their contracts came to an end by efflux of time, and having accepted the nature of the engagement with full awareness, they are estopped from contending against the discontinuation vide order dated 25.11.2023. It is denied that the work done by them is identical or similar to that of regular employees, and it is submitted that the discontinuation is not illegal, as HCoI no longer needs these services.

It is further submitted that the Petitioners’ principal prayer, that they are being replaced by another set of contractual employees, is misplaced, since the sixteen contractual posts advertised (including one Peon and two Sweepers) are for the HCoI branch office at New Delhi and not the Mumbai office, and are for different posts such as Chartered Accountant, Private Secretary, Media Consultant, IT & E-Office Expert, Protocol Assistant, Grievance Redressal Consultant, Accountant, Computer Operator and Passport Assistant. As regards Shri Farhan Asif Siddiqui, whose services were continued w.e.f. 15.12.2023 vide order dated 02.02.2024, it is submitted that this was on the Ministry’s recommendation, owing to his specific work of processing Visa papers in the Haj Division and the team being built at the New Delhi office for pilgrims from North Indian states, and that the extension is only temporary and based on the merit of the requirement. Reliance is placed on Teri Oat Estates (P) Ltd. v. U.T., Chandigarh (2004) 2 SCC 130, to submit that sympathy or sentiment cannot be a ground for relief where no legal right is established. Accordingly, it is prayed that the Writ Petition be dismissed with costs.

We have heard Counsel representing the respective parties and have perused the documents with their assistance. We have also perused the interim order dated 18^th November 2024 passed by the Co-ordinate Bench of this Court. This Court had protected the Petitioners during the pendency of the present petition by directing that if the Haj Committee had not decided on engaging seasonal employees and keeping in view that several such employees were in continuous employment, the Haj Committee shall consider these Petitioners for employment instead of engaging new seasonal employees. The relevant portion of the order reads thus:

There was also a contempt petition filed on behalf of the Petitioners alleging that the Committee had issued a notification inviting applications for engaging fresh hands in contravention of the interim order dated 18^th November 2024. Notice was issued to the Respondent, and on appearance, Dr Sadakat Ali, Deputy CEO of the Haj Committee, personally present in Court, tendered an unconditional apology on behalf of the CEO of the Committee. He assured, on behalf of the Respondent, that it would strictly adhere to this Court's orders henceforth. Accepting the unconditional apology and recording the same, this Court disposed of the contempt petition.

Before delving into the merits of the matter, it is necessary to reproduce the relevant Haj Committee Act and Rules made thereunder by virtue of which the Petitioners claim to be vested with a legal right to regularisation of their services of seasonal nature. The relevant Sections are as under:

Rule 16 reads thus:

Section 16 of the Act deals with the appointment of the Chief Executive Officer and other employees. Sub-clause 5 of Section 16 vests the power to employ such other officers and employees as deemed necessary with the Committee with prior sanction of the Central Government. A plain reading of this provision only indicates that the Committee has the power to employ officers and other employees as deemed necessary. Undoubtedly, the Committee is vested with the power to engage the Petitioners as seasonal workers, with the prior sanction of the Central Government. Accordingly, the Committee employed the Petitioners. Section 44 empowers the Central Government to make rules to carry out the purposes of the Act by issuing a notification in that regard. Section 44(2) gives a list of subjects which may be covered by the Rules so made. Accordingly, the Central Government has notified the Rules. The Petitioners then rely on Rule 16, which deals with appointments of the Chief Executive Officer and other officers and employees of the Committee on a temporary basis and further provides for making such appointments permanent. Further, Rule 16 also provides for termination of officers and employees on deputation and the CEO, by giving prior notice to all concerned. However, Rule 16 does not authorise the Committee to regularise the services of seasonal employees.

We have perused the record carefully. By office order dated 5^th June 2009, the Petitioners were appointed as seasonal clerks. The appointment letters contain no terms and conditions. Mr Nagrani has invited our attention to the revised recruitment rules dated 10^th February 2006, issued by the Ministry of External Affairs. The Rules set out the posts available for recruitment. Mr Nagrani has attempted to convince us that the Petitioners, appointed as seasonal clerks, have been appointed as lower division clerks, a position listed at Sr. No. 10 of the Recruitment Rules. However, the particulars of the office for the purpose of selection indicate that this post is to be filled by direct recruitment from amongst the seasonal clerks who have worked for at least four Haj seasons in the office of the Haj Committee/ Haj House, and 10% of the posts may be filled up by promotion of Haj Committee / Haj House’s Class – D staff possessing the required qualifications. Thus, the Recruitment Rules make it clear that a seasonal clerk is distinct from a lower division clerk, as some lower division clerk posts are to be filled from amongst the available pool of seasonal clerks. We are thus not inclined to accept Mr Nagrani’s argument that the post of Junior Division Clerk provided for in the Recruitment Rules is the same post as the seasonal clerk.

We also asked Mr Nagrani to point out the relevant Rules governing the terms and conditions of service of the Petitioners. The Recruitment Rules on record clearly do not provide for the terms and conditions of service pertaining to seasonal clerks. There does not appear to be any permanent post in the Haj Committee of a seasonal employee. As per the requirements of any Haj season, the employees were recruited for that particular season. Their appointment seems to be only for that season. It may be that several of the Petitioners were re-appointed for more than one Haj season; however, the same cannot be translated into regularisation of their services, since their appointments were purely of a seasonal nature. The employment of such seasonal workers will come to an end by efflux of time.

The Petitioners have prayed to set aside their termination letter and have also sought a declaration that they should not be replaced by another set of contractual employees and that they should be continued with all consequential benefits of service. In the context of their designation as seasonal employees, the Petitioners have no legal right to claim permanent appointment and regularisation.

There is a complaint made by the Petitioners that the Haj Committee is in fact in need of persons to discharge the same work as was being done by the Petitioners as seasonal workers and despite the same, the Haj Committee has proceeded to issue a notification calling for applications from aspiring candidates. The Petitioners thus allege that the interests of justice demand that the Petitioners themselves, having worked with the Committee for so many years, deserve to be reappointed instead of hiring new hands. In the Affidavit filed by one Md. Nadeem, Under Secretary, Haj Division, Ministry of Minority Affairs of Government of India, it is clearly averred that the Haj Committee is not calling for any applications for seasonal clerks to assist the Haj Division in Mumbai. In fact, the Mumbai Division is already adequately staffed. The Committee intends to recruit persons to handle the processing of visa papers and passports of pilgrims from North India in New Delhi. Hence, the Haj Committee has clearly denied the Petitioners’ claim that it is recruiting persons to work as seasonal employees in the Mumbai Division, which relates to the Petitioners. Hence, we find no violation of any service rule.

Mr Nagrani has further brought to our attention a resolution passed by the Haj Committee in a meeting dated 19^th October 2024. At agenda item No. 14, the Committee discussed the issue of 45 seasonal staff terminated in November 2023 who filed a writ petition before the Bombay High Court. The Committee recommended that these 45 terminated staff may be re-engaged if they withdraw the petition. Such a resolution does reveal an arm-twisting strategy. However, without any legal right, the Petitioners cannot be appointed to the permanent post and/or have their services regularised. In State of Maharashtra and Ors. Vs. Anita^{11.(2016) 8 SCC 293}, the Supreme Court held that contractual appointments do not entitle the employees to claim any right or interest in permanent service under the government. The conditions of the employees’ engagement are governed by the agreement, and once having accepted the contractual appointment, the employees are estopped from challenging the terms of their appointment. In fact, they are not precluded from applying for the said posts afresh in the event regular posts are created subject to satisfying other eligibility criteria.

Similarly, in the case of Teri Oat Estates (P) Ltd. V. UT Chandigarh & Ors.^{22.(2004) 2 SCC 130}, the Supreme Court observed that sympathy or sentiment by itself cannot be a ground for passing an order in a case where the appellants miserably failed to establish a legal right. The Supreme Court further observed that despite the extraordinary constitutional jurisdiction under Article 142 of the Constitution of India, even the Supreme Court ordinarily would not pass an order that contravenes statutory provisions.

Thus, considering the above discussions, and the settled legal principles that those who were appointed on contract basis only to meet the exigency of the work which would be intermittently available, cannot claim any legal right to seek regularisation, more particularly when no post for such work are created and / or are available. We are thus not inclined to entertain this petition. The Writ Petition is thus dismissed.

No costs.